පǔ 엓ති තිසංස්කරණප්ර ය
සබ엊ධයෙ엊 ක අ쇓槊ෂණ කාරක සභා වේגකාන්තා හා ස්ී 퇔ෂ සමාජභාවය 퇒ᗒබඳ ආං
වාතාව
පාර්ලිය엊ුව යවත ඉ뷒පත් කරන ල뷊ය뷊 කාරක සභායේ සභාපති ග (වවද්ය) 뗔ිතා විවේමාන්න මහත්මිය විි엒 2020 වපබරවා මස 18 වැ엒 අඟහවාද්ා
தனியார் சட்ட சீர்தி쏁த்தங்கள் ததாடர்பான
தபண்கள் மற்쟁ம் பால்நிலை பற்றிய 鏁லறசார் மமற்பார்லைக் 埁폁ைின் அறிக்லக 埁폁ைின் தைிசாளர் தகௌரை (டாக்டர்) (தி쏁மதி) 鏁தா ைிமேமான்ன அைர்களினால் பாரா쿁மன்றத்தில் சமர்ப்பிக்கப்பட்ட鏁 2020 தபப்ரைாி மாதம்18 ஆம் தசퟍைாய்க்கிழலம
Report of the Sectoral Oversight Committee on Women and Gender on Family Law Reforms Presented to Parliament By The Hon. (Dr.) (Mrs.) Thusitha Wijemanna Chair of the Committee on Tuesday, 18 February 2020
______Sectoral Oversight Committee on Women and Gender
______
Report on Family Law Reforms ______
Tuesday, 18 February 2020 ………… 2019
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Sectoral Oversight Committee on Women and Gender
The Sectoral Oversight Committee on Women and Gender has been appointed to consider, investigate and monitor matters related to all aspects that need investigation with relevance to Women and Child Affairs, to evaluate the level of performance, productivity and efficiency and to make recommendations in that regard.
Composition of the Committee
Hon. (Dr.) (Mrs.) Thusitha Wijemanna (Chair) Hon. Roshan Ranasinghe Hon. (Mrs.) Sumedha G. Jayasena Hon. (Dr.) (Mrs.) Sudarshini Fernandopulle Hon. Eran Wickramaratne Hon. (Mrs.) Sriyani Wijewickrama Hon. Vadivel Suresh Hon. Ranjan Ramanayake Hon. Seyed Ali Zahir Moulana Hon. (Dr.) (Mrs.) Anoma Gamage Hon. Siripala Gamalath Hon. Edward Gunasekara Hon. K. Thurairetnasingam Hon. A. Aravindh Kumar Hon. (Mrs.) Hirunika Premachandra Hon. Bandula Lal Bandarigoda Hon. Prasanna Ranaweera Hon. (Mrs.) Rohini Kumari Wijerathna Hon. (Mrs.) Shanthi Sriskandarasa
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Powers
The powers vested in the Sectoral Oversight Committee on Women and Gender, one of the Sectoral Oversight Committees of Parliament, are set out under the Standing Order No. 111 of Parliament.
Publications
All Reports and Publications of the Committee are published by the Committee Office of Parliament on the order of Parliament and they are available on the official web site of Parliament, www.parliament.lk.
Staff of the Committee
Current staff of the Committee: Mr. Tikiri K. Jayathilake- Assistant Secretary General and the Secretary to the Committee, Mr. Jagath Gajaweera Arachchige- Director (Legislative Services), Mrs. Indira Dasanayaka- Assistant Director (Administration)- Committee Office, Mr. Nishantha Wewelwala- Principal Officer, Miss. Ayesha Weerathunga- Parliamentary Officer.
Contact
All documents should be addressed to Sectoral Oversight Committee on Women and Gender, Committee Office, Parliament of Sri Lanka, Sri Jayawardanepura, Kotte. For general inquiries call 0112777100.
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Contents
1. Introduction ...... ………...39 2. Establishing a Common Marriage Law and prevention of Child Marriages ...... 41 3. Proposed Amendment to Land Development Ordinance No 19 of 1935 ...... 45 4. Proposed Amendment to Maintenance Act No. 37 of 1999 ...... 47 5. Amendments to the Birth Certificate ...... 48 6. Annexures Annexure I- The Private Members' Bill to introduce the Minimum Age of Marriage in Sri Lanka, prepared by the Committee and presented to Parliament on 08 January 2020……………………………………………………………………… 49
Annexure II- The Private Members 'Bills to amend the Marriage Registration Ordinance and the Civil Procedure Code (Article 627), prepared by the Committee and presented to Parliament on 08 January 2020…………55
Annexure III- The Private Members' Bill, presented to Parliament on 05 February 2020, to amend the Land Development Ordinance (Chapter 464) ……………………………………………………………………………59
Annexure IV- Draft Amendment to the Maintenance Act No. 37 of 1999………………..63 Annexure V - Request of the National Committee on Women, amendment to Birth Certificate…………………………………………………………………………….65
Annexure VI- Letter of the Registrar- General’s Department dated 02.05.2019………67
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1. Introduction
The Sectoral Oversight Committee (SOC) on Women and Gender has a mandate to consider, investigate and monitor matters that affect women and children relevant to its scope, and also the Committee suggests recommendations as well. Accordingly, in this report, the Committee discusses several pressing issues faced by women and children with regard to family laws in Sri Lanka and proposes several recommendations.
The discourse on gender equality is set up by the 5th goal of the United Nations 2030 Agenda for Sustainable Development, adopted by world leaders in 2015. Sri Lanka is also a party to the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child (CRC). But the challenges facing women and girls still remain intact.
The report focuses on the following areas, submitted to the Committee by various groups of the society for a long period of time;
• Establishing a General Marriage Law and prevention of Child Marriages • Proposed amendments to the Land Development Ordinance No 19 of 1935 • Proposed amendments to the Maintenance Act No 37 of 1999
The report also discusses the work done by the Committee in order to introduce amendments to Birth Certificates.
The Committee arrived at its observations and recommendations after having extensive discussion and hearing representations made by different groups to the Committee.
Accordingly,
On 06.12.2017, 21.02.2019,04.06.2019,07.06.2019, 21.02.2019 and 13.03.2019 on the issues faced by women in marriage and divorce,
On the dates including the above, on 06.09.2016, 07.10.2016 and 02.12.2016 about the negative impacts of child marriages,
On004.05.2017,07.06.2017,27.07.2017,22.08.2017,19.09.2017,17.10.2017,07.12.2017, 05.04.2018,08.06.2018,07.08.2018,22.01.2019,04.06.2019 and 18.06.2019 on the amendments to the Birth Certificates,
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On 06.12.2017 and 13.09.2017, about the proposed amendments to the Land Development Ordinance No. 19 of 1935 and the Maintenance Act No: 37 of 1999 were brought to the particular concern of the Committee together with the following Expert Panel consisting with,
• Secretary to the Ministry of Women & Child Affairs and Social Security and Officials attended to represent the National Committee on Women, the National Child Protection Authority, the Department of Probation and Child Care Services and the Children's Secretariat
• Officials of the Ministry of Health and Indigenous Medical Services and its Family Health Bureau (FHB)
• Officials of the Family Planning Association of Sri Lanka (FPA) • Professor (Mrs.) Anuruddhi Edirisinghe, Department of Forensic Medicine, University of Kelaniya
• Professor K. K. Karunathilaka, Department of Sociology, University of Kelaniya
• Dr. Janaki Vidanapathirana, Consultant of the National STD / AIDS Control Program
• Officials of the Children & Women Bureau of Sri Lanka Police
• Officials of the United Nations Development Programme
• Officials of the United States Agency for International Development
• Officials of the SOS Children's Village
• Ms. G. Thatchanarany, Assistant Director (Administration)- Bills Office, Parliament of Sri Lanka
Further, as per the decision arrived at the meeting held on 25.07.2017, the following Bills prepared by the Committee on the suggested amendments were presented to Parliament as the Private Members' Bills on 08 January 2020 and 05 February 2020 by the Hon. (Dr.) (Mrs.) Thusitha Wijemanna, Chair of the Committee.
• The Private Members' Bill to introduce the Minimum Age of Marriage in Sri Lanka • The Private Members' Bill to amend the Marriage Registration Ordinance • The Private Members' Bill to amend the Civil Procedure Code (Article 627) • The Private Members' Bill to amend the Land Development Ordinance (Chapter 464)
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2. Establishing a Common Marriage Law and prevention of Child Marriages
2.1 Marriage Laws
Although the General Marriage Ordinance No. 19 of 1907 should be the common law of marriage for all citizens, certain communities may marry in accordance with their personal laws.
The women of these communities have presented themselves to the Committee on several occasions claiming that they have suffering in both the marriage and the divorce.
Article 12(2) of the 1978 Constitution of Sri Lanka states that:
“No citizen shall be discriminated against on the grounds of race, religion, language, caste, sex, political opinion, place of birth or any one of such grounds”.
Accordingly, this practice, effecting on gender inequity is violating the Constitution as well.
2.2 Minimum age of marriage
Under the General Marriage Registration Ordinance No. 19 of 1907, both partners must be at least 18 years of age.1
According to the Sri Lankan Penal Code Section 363 and 363(e), a man is said to commit rape if he has sexual intercourse with a girl below 16 years of age, with or without her consent, unless the woman is his wife who is over twelve years of age and is not judicially separated from the man.
But, as it is not the only law applicable to all citizens, child marriages can be seen in Sri Lanka and some women (who married between 12 and 16 years of age) are not covered by the provisions on statutory rape.
1 Section 15, GMO
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2.2.1 Negative effects of child marriage
The negative effects of child marriage are well documented.
Early marriage results in disruption of education, and teenage pregnancies which can have serious health consequences.
The World Health Organization (WHO) reports that adolescent mothers (ages 10 to 19 years) face higher risks of health complications such as eclampsia and systemic infections than women aged 20 to 24 years. Early childbearing can increase risks for newborns, as well as young mothers. 2
Child marriage has a negative impact on health, mental and emotional development. It also affects society as a whole since child marriage reinforces a cycle of poverty and perpetuates gender discrimination and illiteracy.
Girls married as children are more likely to drop out of school and have a low paying jobs and limited decision-making power at home. They are also more like to face violence and abuse because they have fewer skills and less negotiating power.3
Child marriage has negative effects from an economic point of view as well. A study carried out by the International Center for Research on Women (ICRW) and the World Bank showed that the interruption of education as a result of child marriage reduces the earning of child brides in adulthood, which has a negative impact for households and national economies. Ending child marriage would have positive effects on girls’ education, which in turn would bring many additional benefits.4
Research in Sri Lanka shows numerous instances where early marriage has had detrimental effects for women.5 Advocacy groups report that marriages arranged by guardians are occurring between 14 and 17 years of age, in districts like Puttalam and Batticaloa. It’s reported that records on marriage registration in Kattankudy indicate that in 2015 - 22% of all registered marriages were with a bride below 18 years of age.6
2 https://www.who.int/news-room/fact-sheets/detail/adolescent-pregnancy 3 http://unicef.in/Whatwedo/30/Child-Marriage 4 Economic Impacts of Child Marriage: Global Synthesis Report (June 2017) https://blogs.worldbank.org/education/rippling-economic-impacts-child-marriage 5 https://mplreforms.com/cases/ 6 Unequal citizens: Muslim women’s struggle for justice and equality in Sri Lanka. Hyshyama Hamin, Hasanah Cegu Isadeen (October 2016) https://mplreforms.com/unequal-citizens-study/
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2.2.2 Child Marriage and the State
The State has an obligation to protect the rights of every girl child.
Sri Lanka is a party to Convention for Elimination of all forms of Discrimination Against Women (CEDAW) and Convention on the Rights of the Child (CRC).
The Convention on the Rights of the Child (CRC) recognizes anyone below the age of 18 years as a child (Article 1 of the Convention) and the Article 2 of the CRC specifies that;
“States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.”
Article 16 (2) of Convention for Elimination of all forms of Discrimination Against Women states;
“The betrothal and the marriage of a child shall have no legal effect, and all necessary action, including legislation, shall be taken to specify a minimum age for marriage and to make the registration of marriages in an official registry compulsory.”
As a party to these conventions Sri Lanka has an obligation to protect the rights of the all Sri Lankan children.
The Committee discussed those matters at its several Meetings, Policy Dialogues and focused on the submissions made by the different groups as well.
Representatives of the advocacy groups pointed out the gender discrimination and social discrimination that are faced by women in relation to marriage and divorce laws. The proposals made by the Committee for reforms have included the following7 ;
• stipulating 18 years of age as the minimum age of marriage
• availing the General Marriage Ordinance as the law applicable to all citizens
• making the signature of the bride mandatory in the official marriage documentation recognizing women’s capacity to enter into marriage contract
• abolishing polygamy and ensuring equal divorce rights for men and women.
7 Key recommendations for reform of the MMDA and reasons. Submission made by MPLRAG
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2.3 Recommendations
• Stipulating minimum age of marriage
The Committee recommends that it should be stipulated that the minimum age of marriage should be 18 years for all Sri Lankan citizens and to introduce the Private Members' Bill to setting Minimum Age of Marriage in Sri Lanka prepared by the Committee was presented to Parliament on 08 January 2020 by the Hon. (Dr.) (Mrs.) Thusitha Wijemanna (Annexure I)
• Amending preamble of GMO
As per the recommendation of the Committee, the Private Members' Bills to amend the Preamble of the Marriage Registration Ordinance No. 19 of 1907 and the Civil Procedure Code (Article 627) was presented to Parliament on 08 January 2020 by the Hon. (Dr.) (Mrs.) Thusitha Wijemanna (Annexure II).
• Repeal of Article 16 (1) of the Constitution It is recommended that a Constitutional amendment be drafted to repeal Article 16 (1) of the Constitution.
Article 16(1) of the Constitution states that;
“All existing written law and unwritten law shall be valid and operative notwithstanding
any inconsistency with the preceding provisions of this Chapter”.
This means that written and unwritten laws existed before passing the Constitution cannot be challenged in Courts in any case of violation of fundamental rights.
The proposed amendment anticipates the abolition of personal laws.
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3. Proposed Amendment to Land Development Ordinance No. 19 of 1935
The Land Development Ordinance No 19 of 1935 (LDO) provides for the development and alienation of state land in Sri Lanka. The Ordinance also specifies procedural measures relating to issuing of permits and grants of land.8
Section 72 of the LDO states that if a successor to land alienated under the Ordinance has not been specified, the title devolves as prescribed in rules set out in the Third Schedule to the Ordinance.
Rule 1 (b) of the Third schedule of the LDO currently states as follows;
“(b) Title to a holding for the purposes of Section 72 shall devolve on one only of the relatives of the permit -holder or owner in the order of priority in which they are respectively mentioned in the subjoined table, the older being preferred to the younger where there are more relatives than one in any group.
Table (i) Sons. (ii) Daughters. (iii) Grandsons. (iv) Granddaughters. (v) Father. (vi) Mother. (vii) Brothers. (viii) Sisters. (ix) Uncles. (x) Aunts. (XI) Nephews. (xii) Nieces.”
Preference is given to the eldest male child, which is a violation of the principle of gender equality. Daughters are eliminated from inheritance if there are male children.
8 Land Development Ordinance; key concerns and ideas for reform (June 2017) Raji N. Law and Society Trust
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Daughters, grandsons, granddaughters etc. become eligible for title only in the absence of male children. In practice this means that land title succeeds to a single owner and cannot be divided equally among all children. This has negative implications for inheritance and can also lead to family disputes.
Recommendation
The Private Members' Bill, prepared by the Committee, recommending some reforms to amend the Land Development Ordinance (Chapter 464), including the amendment to the Schedule 1 (b) of the Third Schedule, was presented to Parliament on 05 February 2020, by the Hon. (Dr.) (Mrs.) Thusitha Wijemanna (Annexure III).
The terms ‘sons, daughters, grandsons, granddaughters’ etc. be replaced with the terms ‘children, grandchildren’ as given below;
(i) Children (ii) Grandchildren (iii) Parents (iv) Siblings (v) Uncles and Aunts (vi) Nephews and Nieces
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4. Proposed Amendment to Maintenance Act No. 37 of 1999
Section 2 (2) of the Maintenance Act states;
“Where a parent having sufficient means neglects or refuses to maintain his or her child who is unable to maintain himself or herself, the Magistrate may upon an application being made for maintenance and upon proof of such neglect or refusal, order such parent to make a monthly allowance for the maintenance of such child at such monthly rate as the Magistrate thinks fit, having regard to the income of the parents and the means and circumstances of the child :
Provided however, that no such order shall be made in the case of a non-marital child unless parentage is established by cogent evidence to the satisfaction of the Magistrate”.
In the case of a child in a family where the parents are not married, the DNA test will be used to ensure paternity. The Committee proposes to insert a clause stating that the Magistrate shall have the power to issue relevant orders when the Court deems that a DNA test is required or if a party requests to do so.
It is proposed that the following Section be inserted;
“2. (6) Where an application made under subsection (2) or (3) or (4) of Section 2, the Magistrate, shall order for a DNA test in order to establish the paternity, when the paternity is denied. The court may also order to pay the cost of the DNA test, if the paternity is proved by the DNA test”
(Draft Amendment - Annexure IV)
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5. Amendment to the Birth Certificate
A request had been made to the SOC on Women and Gender by the National Committee on Women to take steps to remove the 6th column in the Birth Certificate, “Were parents married?”.
(Annexure V- Request made to the Committee by the National Committee on Women)
The following issues had been identified by the National Committee on Women; • Difficulties faced when registering birth of children born as a result of rape and children of teen mothers below age of 16 years • Illegitimate children and their mothers face many difficulties when seeking school admission • Recording this in the Birth Certificate leads to social ostracization has an adverse effect on these children. Due to no fault of their own they face practical and social problems • Mothers who are not legally married have to face unwanted social problems
After several deliberations, the SOC on Women and Gender recommend to remove the said column and by the letter dated 02.05.2019 (Annexure VI ),the Registrar- General’s Department had stated that they had arranged to issue “National Birth Certificate“ in an international format which has not included the said column, with the effect from 16.03.2019, to register births that had from 01.01.2019 (information relating to marital status of parents will be available in the data base of the Department, if anyone needs).
When requests are made to obtain Birth Certificates in relevant to the births occurred before 01.01.2019, the new “National Birth Certificate “should be issued. Further, the Committee also focused on issuing an “Extract of Birth Register” to coincide with issuing the National Birth Certificates and to ensure both National Birth Certificate and the Extract of Birth Register should have equal acceptance.
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Annexure I
PARLIAMENT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA
MINIMUM AGE OF MARRIAGE
A BILL
to introduce the Minimum Age of Marriage in Sri Lanka
Presented by Hon. (Dr.) (Mrs.) Thusitha Wijemanna, M. P. for Kegalle District on 08th of January, 2620
(Published in the Gazette on December 16, 2019)
Ordered by Parliament to be printed
[Bill No. 315]
PRINTED AT THE DEPARTMENT OF GOVERNMENT PRINTING, LAHKA TO BE PURCHASED ATTHE 00VERNMEN7 PUBLICATIONS BUREAU.COLOMBO 5 Price: Rs. 12.00 Postage : its. 15.00
This on be downloaded from www.documents.govn
49 Minimum Age of Marriage
AN An' TO INTRODUCE THE MIIMMUMAGEOFMARRIAGE IN SAILANICA
WHEREAS the child or underage marriage is an infringement Preamble. of a young person's right to education, development and security and as such is considered a serious social evil that may render vulnerable the children of Sri Lanka to forms of 5 physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse:
WHEREAS that Sri Lanka guarantees equal protection of the law to all its people regardless of age, race, religion, language, 10 caste, sex, political opinion, place of birth or any one of such grounds:
WHEREAS the duty of the State owed to future generations to ensure that such future generations have the opportunity to learn, develop and grow to become a better and more 15 prosperous society: and
WHEREAS of this Act to afford to all persons under the age of eighteen all possible protection of the law and to ensure that no person shall consent or decide on their behalf to enter them into a marriage and to introduce measures for the relevant 20 organs of the State give full effect to the spirit and letter of this Act and thereby convey that the State is committed to the elimination of child marriage:
BE it therefore, enacted by the Parliament of the Democratic Socialist Republic of Sri Lanka as follows:-
25 1. This Act may be cited as the Minimum Age of Short title. Marriage Act. No. of 2020. 2 Minimum Age of Marriage
No marriage contracted after the coming into force of Minimum is this Act shall be valid unless both parties to the marriage age eighteen. have completed eighteen years of age.
3. ( 1) Every child marriage, whether solemnised before Child 5 or after the commencement of this Act, shall be voidable at marriages to be voidable the option of the contracting party who was a child at the at the option time of the marriage. of contracting Provided that an application for annulling a child party being a child. marriage by a decree of nullity may be filed in the District 10 court in the local jurisdiction in which the applicant resides and by only a contracting party to the marriage who was child at the time of the marriage.
If at the time of filing an application, the applicant is a minor, the application may be filed through his or her 15 guardian or next friend.
The application under this section may be filed at any time but before the child filing the application completes two years of attaining majority.
Every application under this section shall be made in 20 writing and shall be signed by the applicant or the person making the application on his behalf and shall be free of any stamp duty. Every summons to a respondent or a witness shall also be free of stamp duty.
Once an application is filed and Court is satisfied on 25 the application that—
the applicant had not reached the age of 18 at the time the marriage was registered; and
that the marriage was registered,
the Court shall make grant a decree of nullity of such 30 marriage.
51 Minimum Age of Marriage 3
While granting a decree of nullity under this section, the Court shall make an order directing both the parties to the marriage and their parents or their guardians to return to the other party, his or her parents or guardian, as the case may be, the money, valuables, ornaments other gifts and money:
Provided that no order under this section shall be executed unless the concerned parties have been given notices to appear before the Court and show cause why such order 10 should not be passed.
Where there are children born of the child marriage, the Court shall make an appropriate order for the custody of such children. While making an order for the custody of a child under this section, the welfare and best interests of the 15 child shall be the paramount consideration to be given by the Court.
An order for custody of a child may also include appropriate directions for giving to the other party access to the child in such a manner as may best serve the interests of 20 the child, and such other orders as the Court may, in the interest of the child, deem proper.
The Court may also make an appropriate order for providing maintenance to the child by a party to the marriage or their parents or guardians.
95 4. Notwithstanding that a child marriage has been Legitimacy annulled by a decree of nullity under section 3, every child boofrcnhildren. of child begotten or conceived such marriage before the decree is marriages. made, whether born before or after the commencement of this Act, shall be deemed to be a legitimate child for all 30 purposes.
4 Minimum Age of Marriage
5. In this Act— Interpretation.
"child" means, any person who has not attained the age of eighteen;